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The Planning Process

This is a personal essay and will be of interest to those who seek to
understand the events and decisions that made it possible for permission to be
granted to build over the Fulford battle site.

If you have faith in the good sense or justice of the planning process, what
follows will challenge that belief. The disregard for evidence, sloppy or
selective thinking, a twisting of the laws of logic, plus an abuse of the
process along with a selective application of the planning rules themselves were
all displayed during the inquiry. It led me to the conclusion that what the
executive wants, the executive gets. I am surprised, and saddened, that so many
good people were the willing accomplices to this cultural crime.

I could accept the fate of the battles site if there had been an open debate
with the wider community. Perhaps such a debate might decide that the
development gain was more important than the heritage loss. I cannot accept that
a small group has achieved this by what strikes me as deception.

I hope that what follows will justify these strong condemnations. Close
contact with the planning process for over a decade has regularly challenged my
fundamental belief in justice and its close companion, freedom. This essay
should serve to warn those who look to the planning process to protect our
heritage.

This essay merits inclusion within this report because it explains the context,
and severe constraints, that were placed on the investigation. The project only
scratched the surface because that is all we were allowed to do. It explains why
so many follow-on projects are proposed. The essay will
question if an inquiry can properly take place where the beneficiary of the
decision is in a position to impose restrictions which limit the discovery of
heritage information. Alongside the criticism of the existing system, it
proposes an alternative model of bringing land forward for development.

Almost all of the evidence was presented to the
planners and at the public inquiry. (The work of the last 5 years has involved
checking and testing the evidence rather than revealing more information). Much of what follows explores how and why
this evidence was ignored. To understand just how it was possible to do this,
and to permit readers to form a proper judgement, there are three appendices to
this chapter.

The first quotes the inspector’s conclusions, with my commentary on why
almost all he says about the battlefield is in conflict with the evidence that
was presented.

There is a second appendix which has the actual summary of the evidence that
was presented to the inquiry. I believe that this makes the claim that there is
no evidence for the Fulford battle site unsustainable.

The last appendix has some of the silly events and some obtuse comments on
how to survive and succeed when dealing with the planning process. My hope is
that by studying how such a travesty of the planning process happened, it can be
prevented in future. To this end, I have provided some, not altogether serious,
tips for those facing the planning process. I hope that the injustice that was
done at Fulford will not be repeated elsewhere.

Because much of what follows is focused on the planning process, to do it
justice, long passages of the planning rules and guidance need to be included. I
have highlighted the key parts, but left them in their context.

I cannot easily fit the disparate topics discussed here into a neat
narrative, although they share the theme of ‘planning’. There is, for
example, a passage discussing why it is important to preserve battle sites.
Another explains just how much there is still left for visitors to Fulford. So I
invite readers to pick and choose their topics of interest. I have provided
expansive headings as a guide around this chapter.

Chapter 9: The Planning process

The process

The Germany Beck project chronology looks like this:

1989

– First planning proposal is submitted to the Selby planning
authority

There were a number of strategic plans being prepared at the time covering
the area. One draft of a consultation document of the Selby District Local Plan
proposed a residential development south of Heslington Lane.

1995 – A Desktop study set out the parameters for the archaeological
investigations required. The recommendations included looking for the site of
the battle of Fulford.

1996

– The main evaluation work was undertaken, but no consultation or
methodology was undertaken to investigate the suspected battle site although it
had been identified as a factor in the preparatory work on this site.

Boundary reorganisation brought Germany Beck within the planning control of
the new unitary authority, City of York (COYC).

The York authority had previously objected to the planned housing having
direct access to Heslington Lane which crossed the previous planning boundary
between Selby and York. They objected because, at the time that they raised this
objection, COYC were actively considering ways to restrict the flow of traffic
along an already busy Fulford Road and its feeder roads. Various proposals to
reduce the flow were set out in the report by the Buchanan Consultancy. So the
City had already recognised the problems of the traffic volumes using Fulford
Road.

1998

– Germany Beck is proposed for housing in the early drafts of the
City of York Local Plan, to which many objections were raised. The final plan
was delayed.

2001

– In April an Outline Planning application was submitted and,
after the various statutory bodies were consulted, a number of significant
changes were called for which required some aspects of the plan to be revised.
The vulnerability of the site to flooding was recognised and some ponds to hold
flood-water were added to the plan and a dam to isolate Germany Beck from the
oft-flooding Ouse was planned.

Fulford Battlefield Society formed to apply for a Heritage Lottery grant to
extend the work begun the previous year.

2003

– In December a revised plan and much modified, supporting
paperwork was submitted by the developers.

2005

– In May, the COYC Planning Committee approved the application. It
was recognised at the time that a plan of this size would automatically be
referred to Secretary of State so the role of the local authority planning
committee seemed to be marginal. Whether they approved or rejected the plan, the
matter was almost certainly be taken out of their hands so there was little
point in opposing it and risking some legal action from the developers.

In September the application was indeed ‘called in’. This meant that a
Minister would take over the role of deciding if the planning application should
be approved. The rules that set out where central government can assume the role
of planning authority cover most large developments. So the ultimate decision
for major developments would normally be taken out of the hands of local people.

2006

– The Public Inquiry took place in July. It was based on a new set
of plans that were submitted shortly before the inquiry opened. There was a
tight timetable for preparing and submitting evidence prior to the inquiry
itself to give all parties a chance to study the case. However, the inspector
told me on the opening day of the inquiry that it did not prevent a modified
application being submitted even though the opponents would have to prepare
their submissions using out of date plans.

2007

– After a postponement from the planned ministerial announcement
date in April, The Local Government Minister, Ruth Kelly, granted planning
permission on 10th May, the same day that Tony Blair announced his decisions to
resign as Prime Minister.

August – Application to divert a highway was submitted to the Government
Office to allow work on the access road to begin. Many objections were raised as
the area of road to be worked on has not been subject to any investigation and
it lies at the heart of the battle. The necessary order was granted without any
further consultation or the objections being addressed. I am told by the
planning authorities that they could start work on the access road tomorrow if
they wished.

2008

– January – The Friends of Germany Beck apply to register land
as a village green. After a Public Inquiry another inspector declined to grant
the application.

Wh

y planning takes time or ‘who is
responsible for the delays?’

The consortia proposing the development on the Fulford site would like you to
focus on the fact that more than 20 years have passed since their initial
proposal. But it actually took just 16 months for the planning application to be
approved and then 2 years from start to finish for the Inquiry process. There
are a number of interpretations of how this process has operated.

The rest of the time was required by the consortia to devise a scheme that
was able to meet the flooding, traffic and environmental standards. The various
statuary bodies such as English Nature (later Natural England), the Environment
Agency and English Heritage did their job in scrutinising and identifying the
defects and deficiencies of the earlier plans. I will criticise the rules and
models these bodies employed but their performance, as a part of the planning
process, is to ensure that the guidance or rules are followed.

It would be wrong to assign blame to the planning process for the ‘delays’.
If the consortia who prepared and presented a plan had initially met the many
requirements for a large development, the process might have been much quicker.
The responsibility for delays lies with those who submit minimalist proposals
that attempt to get a way with the lowest cost. Failure to analyse
issues such as flooding and the landscape means delays are inevitable. If
applicants addressed their obligations to ensure a good, safe development, then
the delays would not be so long.

This sets the theme for the conflict at the heart of planning. The community
takes a long view which seeks to minimise harm when change has to be
accommodated, while a developer’s interests are short term as they seek to
serve a limited, and remote, set of beneficiaries. Because housing development
is so profitable, applications could propose good schemes that will not need to
be redesigned. So this planning process can appear slow as it is often necessary
to redesign the plans.

And it is vital that time is allowed at each stage of the revision for the
public to be consulted, since it is their environment and living space that will
be affected. However, I do not think this caused any delays. In my submission to
the inquiry I made the following comment on the way the local authority had
dealt with the issues raised, having noted that none of the 90 letters appeared
to have actually had the matters they raised answered.

"When inspecting the planning papers recently it was sad to see how very
few of the issues raised by those outside the circle of ‘statutory consultees’
penetrated the planning process. This is not the place to discuss democratic
accountability but there is a grave deficit when it comes to these large
projects in contrast with small developments, where some would claim the process
is ‘too democratic’ and open to protests."

I am still not clear why public comments are invited yet there is no evidence that
any action is taken on them. As one of the objectors, I know that to be the
case.

When firms seek to impose massive change on local communities they must not
only allow time for consultation but actually engage in some meaningful
discussion. The planning guidance has many suggestions of a process of
consultation with local people as well as the planning agencies that should be
adopted to ensure schemes are successful. Compared with the Osbaldwick and
Hungate developments that were going on concurrently, public consultation at
Fulford has been almost non-existent.

The protection the planning process is supposed to provide to heritage and
the environment

The discussion that follows is focused on the rules regarding heritage which
those considering planning applications are supposed to consider. The rules
undergo periodic revision but the ones quoted below are those under which the
decisions about Fulford were taken. The battle site should have been safe from
development if the rules had been applied so this demonstrates just how easy it
is to sidestep them.

These are some clearly relating to the protection of our heritage under which
one might assume would protect a site such as Fulford:

"HE9.1 There should be a presumption in favour of the conservation of
designated heritage assets and the more significant the designated heritage
asset, the greater the presumption in favour of its conservation should be. Once
lost, heritage assets cannot be replaced and their loss has a cultural,
environmental, economic and social impact. Significance can be harmed or
lost through alteration or destruction of the heritage asset or development
within its setting. Loss affecting any designated heritage asset should require
clear and convincing justification. Substantial harm to or loss of a grade II
listed building, park or garden should be exceptional. Substantial harm to or
loss of designated heritage assets of the highest significance, including
scheduled monuments,

protected
wreck sites, battlefields, grade I and II* listed buildings and grade I and II*
registered parks and gardens, World Heritage Sites, should be wholly
exceptional."

This says that disturbing battle sites ‘should be wholly exceptional’.

"HE 9.2 Where the application will lead to substantial harm to or total
loss of significance local planning authorities should refuse consent unless it
can be demonstrated that:

(i) the substantial harm to or loss of significance is necessary in order to
deliver substantial public benefits that outweigh that harm or loss; or

(ii) (a) the nature of the heritage asset prevents all reasonable uses of the
site; and

(b) no viable use of the heritage asset itself can be found in the medium
term that will enable its conservation; and

(c ) conservation through grant-funding or some form of charitable or public
ownership is not possible; and

(d) the harm to or loss of the heritage asset is outweighed by the benefits
of bringing the site back into use."

Saving the site would seem to tick all of the ‘yes’ boxes here with none
of the exceptions being relevant. The planning system is very clear about the
importance of archaeology and is expansive in its definition of what must be
investigated:

"3. Archaeological remains are irreplaceable. They are evidence - for
prehistoric periods, the only evidence - of the past development of our
civilization.

"4. Today's archaeological landscape is the product of human activity
over thousands of years. It ranges through settlements and remains of every
period, from the camps of the early hunter gatherers 400,000 years ago to
remains of early 20th century activities. It includes places of worship, defence
installations, burial grounds, farms and fields, and sites of manufacture.

"5. These remains vary enormously in their state of preservation and in
the extent of their appeal to the public. ‘Upstanding’ remains are familiar
enough - the great stone circles, the castle and abbey ruins of the Middle Ages
or abandoned coastal defence systems. But less obvious archaeological remains,
such as ancient settlements and field systems, are also to be found across large
parts of the country. Some prehistoric sites in wetland areas contain important
wood and organic remains. Many buildings in older towns lie on top of Roman,
Anglo-Saxon or medieval structures.

"6. Archaeological remains should be seen as a finite and non-renewable
resource, in many cases highly fragile and vulnerable to damage and destruction.
Appropriate management is therefore essential to ensure that they survive in
good condition. In particular, care must be taken to ensure that
archaeological remains are not needlessly or thoughtlessly destroyed. They
can contain irreplaceable information about our past and the potential for an
increase in future knowledge. They are part of our sense of national identity
and are valuable both for their own sake and for their role in education,
leisure and tourism.

"8.With the many demands of modern society, it is not always
feasible to save all archaeological remains. The key question is where and how
to strike the right balance. Where nationally important archaeological remains, whether
scheduled or not, and their settings, are affected by proposed development there
should be a presumption in favour of their physical preservation. Cases
involving archaeological remains of lesser importance will not always be so
clear cut and planning authorities will need to weigh the relative importance of
archaeology against other factors including the need for the proposed
development (see also paragraph 27). Regardless of the circumstances, taking
decisions is much easier if any archaeological aspects of a development site can
be considered early on in the planning and development control process. ….."

This passage can be criticised as being too protective but it is mandating
that any area proposed for development must be properly investigated. Those
investigations must be relevant to the situation in order that an informed
judgement is possible by those who have to make decisions on behalf of the
community.

Critically, the planning guidance requires that there is a debate about the
value of the asset and it proved impossible to engage any stage of the long
process in the sort of discussion required to decide how important our heritage
is in cultural and economic terms and to compare that with the need for housing.
My submissions on this subject were ignored – clearly nobody with authority
wanted this debate.

PPG15 discusses the case where a new road is deemed necessary. It imposes an
evaluation on the planning authority.

"5.5 If a new route is unavoidable, authorities should initially
identify any features of the historic environment - including parks, gardens,
battlefields and archaeological sites as well as buildings and areas - and
evaluate their importance."

Based on these clear guiding principles that are given to planners, plus the
injunctions about proper investigation and consideration that were echoed in the
ministerial letter setting up the inquiry, it should only have been necessary to
show that the site was of national significance and that it was likely to have
been the site of the battle for the access road to have been protected from
development.

It was obvious very early in the planning process that it was the clear view
of many organisations, starting with English Heritage, that the two conditions
of importance and probability had been met at Fulford. Nevertheless, it was
equally clear that the planners, including the inspector, were going to overlook
their planning mandates.

The lesson here is that the guidance given to planners and builders is well
written, informative, carefully balanced but a complete waste of paper. It
really is a waste of time insisting that people should respect the government’s
planning guidance if they can ignore it without censure or sanction. I felt like
somebody waving a copy of the Geneva Convention at falling bombs.

By the simplest of expedients, namely refusing to accept that the access road
ran along the site of the battle, nearly all of these protections are
circumvented. The guidance could not be clearer. It says that the setting of
significant sites, including battlefields, should only be disturbed in
exceptional circumstances. But if you simply refuse to accept that the battle of
Fulford took place along Germany Beck then it is possible to ignore all the
rules and guidance. The ostrich stratagem worked well for the applicant.

My failure to force the inquiry to address the issue of evidence – If you
fail to address an issue then there can be no debate. I would advise others to
press much harder to force a proper respect for the planning guidelines. It is
to the shame of those who operate the planning system who should be working for
the public, allowed the developers to set the agenda in this way.

Footnote

Planning guidance is constantly being updated. While preparing this chapter,
early in 2010, I was sent this extract from the latest PPS. Several people as it
turned out wanted to draw my attention to the latest rules which they believe
strengthens the case for considering battlefields such as Fulford: Paragraph 5
of the introduction to this planning policy statement (PPS5) says;

"Those parts of the historic environment that have significance because
of their historic, archaeological, architectural or artistic interest are called
heritage assets. Some heritage assets possess a level of interest that justifies
designation (see Annex 2) and particular procedures apply to decisions that
involve them. This statement also covers heritage assets that are not
designated but which are of heritage interest and are thus a material planning
consideration."

Promoting something to become a ‘material planning consideration’ implies
little more than that it should be addressed and considered. The recognition of heritage
assets is welcome but it will not stop people bypassing the rules.

The updated document also increases the power of the local authority to
direct investigative work if they feel an applicant has not done the work
required. These are both welcome tweaks but they fall well short of mandating
proper investigation and consideration of heritage sites. The term ‘Heritage
Asset’ is one that will find its way into use when the Heritage Protections
Bill (discussed later) is enacted.

The rules that were there to protect the site, were ignored.

How the project started to engage with the planning process

It was when talking to a local historian in Fulford during 1999 that I leant
of the possible housing development planned for the area. However, at that
stage, there was no indication that Germany Beck was to provide the access route
as the housing was some distance from the area we were investigating.
Furthermore, a copy of the desktop study prepared for the developers was
obtained which suggested that Germany Beck was the probable place for the
battle. This was both interesting, since it was one of the possible sites we
were looking at, and re-assuring since we naively thought it would mean that the
site would be properly evaluated. I was able to look at some of the
archaeological reports in 2001.

It all began so well. The developers in their desktop study noted:

"The location for the battle is open to conjecture. The geographical
details that the river was to the right (west) and the ditch was on the left
(east) suggests that the ditch mentioned may refer to Germany Beck. This
theory was adhered to by K Penn who wrote the report on the A64 Outer Ring Road
evaluation in 1973. Broadhead in his article gives the location of the
battle on Fulford Ings (SE 609488).

"Without further field evaluation this issue seems likely to remain
unresolved. …. The site of the battle of Fulford, based on interpretation
of the available evidence does suggest that this event may have occurred either
on the site or very close to the eastern boundary of the site. Whether
information relevant to this event would be forthcoming from the development of
the site is difficult to say. … Considering the results of the evaluation it
is recommended that further evaluation of the proposed development area be
undertaken."

When this was written, probably in 1995, the area of Germany Beck did not
form part of the proposed development that the local people of York were aware
of. In a public debate in early 2001, which was a part of the public
consultation called for by COYC, it was agreed with the developer’s
archaeological advisor, Anne Finney, that we both accepted Germany Beck as the
probable battle site. So we spent an entertaining evening talking about the
history of the battle and the archaeology of the area as well as debating how it
might be possible to prove where the battle took place. At no point was an
alternative site suggested for the battle – the only issue was whether the
location of the battlefield could be proved with some evidence.

It was only late in 2001, with full layout not available until April 2003,
that the role of Germany Beck as the access road for the 600+ houses was finally
revealed. While homeowners are required to display notices if
they plan some small alteration, nobody can recall seeing any such notice for
the large development planned along Germany Beck. There were certainly no maps
on display to alert us. I would suggest that this is an omission which the law
needs to address to make sure that people are better informed. Notices should be
placed in the fields and on the pathways near proposed developments.

A decade after their desktop study the developer would be claiming that
"the proposed development would not appear to impact on the battlefield
location due to the total lack of evidence to support the battle having taken
place on the Germany Beck site" which, as various people have pointed out,
both lacks logic and is wrong.

To have any idea that their development would not impact the battlefield
means that those making this claim know where the site is. If they do know where
the battle was fought, they have so far failed to reveal it. Given that it would
have made their case if they could provide some evidence that the battle was not
on their proposed site, it is simply not credible that they have such knowledge.

The claim that there is no evidence is disingenuous. A great deal of physical
evidence has been recovered by our project. By contrast, the developers have
both obstructed access and also failed to conduct any relevant research
themselves. They are at liberty to dispute the landscape and hearth evidence but
they are quite wrong to maintain that there is ‘no evidence’.

The effectiveness of this fallacy can be seen in the report written by the
inspector after the inquiry as it is faithfully echoed.

So the developer’s story changed from one of accepting this was the site,
but that it would be hard to prove, to one of denying that Germany Beck was the
place for the battle. Their revised landscape study, where it was implied that a
track carved by the retreating ice was really a post-conquest drainage ditch,
gave the first clear indication that the debate was not going to be conducted
using evidence. Only as I became aware that absolute denial, based on the ‘no
proof’ which morphed into the ‘no evidence’ argument, was the line which
the developers would follow, did my futile attempts to expose the faulty logic,
obfuscation, inconsistencies and worse begin.

The Nature of proof and what constitutes evidence

The proposers of this development might be right in asserting that the
location has not been ‘proved’. It all depends on how we interpret the term
‘proof’. The work does raise some interesting issues about the nature of
proof that is relevant in this context because of the subtle use of words
employed. The developers cleverly managed to create equivalence, in the mind of
the inspector at least, that failure to prove existence was equivalent to
proving non-existence. Absence of evidence is not evidence of absence: failure
to recognise this is often called the ‘argument from ignorance’ or a false
dichotomy.

Scientific proof requires some testable and independently reproducible
result. This is an absolute standard. However, nobody is suggesting that a
battle could be restaged and the effects observed in the various landscapes.
Modern science is often forced to operate with the ‘theories’ of evolution,
relativity, quantum mechanics and now global warming. It is impossible to ‘prove’
these theories but we have no trouble working with them, although they will all
have their critics so long as they cannot be ‘proved’ scientifically.

It is important to recognise that although a theory is unproved it does not
mean that it is wrong or that the scientists are uncertain about their theories.
It reflects their respect for the limits to our understanding or ability to
conduct the required experiments in many areas of the physical world. To propose
something as a theory, or to frame a hypothesis, does not imply uncertainty. It
reflects the modesty of its exponents who recognise that there are limits to
their knowledge, and the courage of its proponents to offer a proposition that
can be tested.

A theory recognises that people in the future will be able to take the work
forward as new discoveries are made. So it is often necessary even for
scientists to operate below the level of absolute proof.

The ‘criminal’ model of proof is, by comparison, rather low. Normally it
requires a case to be established beyond reasonable doubt in the view of some
independent minds. This still sets a challenge for the side that has to do the
‘proving’, especially when there are strict rules limiting what can be
presented as evidence. It is normal for the burden of proof in criminal trials
to be borne by the prosecution rather than the defence.

So in planning law you would hope that the proposers of any development,
rather than the objector, would have to make the case. Had their case come
before a proper court, their mantra, ‘there is no evidence’, would not
provide a sensible case, as the jurors would expect them to explain why the
literature seemed to fit the 1066 landscape so well and have demanded an
explanation for the abundant evidence of martial metal-recycling along the site
which the defence would have offered. Sadly we were deprived of a qualified
judge as well as a jury at the inquiry. So the criminal model, although
workable, was not the one that was used.

The rule in civil cases rests on the balance of probability and this is
perhaps another sensible test of ‘proof’ to apply to archaeological sites.
The forgoing chapters have attempted to make such a case for the probable
location of the site of the battle at Fulford.

If this view of proof is accepted then all that remains is to find an
appropriate forum to ‘try’ the evidence of the battlefield. The system
adopted by the developers and planning authorities is certainly not suitable
since neither party are experts nor are they impartial. The inquiry might have
served the purpose but utterly failed to assess the evidence presented.

There is also a debate to be held among historians and archaeologists about
whether the idea of proof is itself a valid goal. I frequently find words such
as ‘interpretation’ and ‘narrative’ applied to archaeological sites or
historical events. We have seen how each generation of investigators, regardless
of the field of study, is able to extract more information and extend our
understanding. Just as science is now content to use the designation of ‘theory’
for many of the important principles that underlie our understanding of the
physical world, perhaps scholars who discourse on past events should also aspire
to a more humble target.

If one follows the idea of a narrative, then it would be easy to feel that
the site should have a secure and undisturbed future when one reads the many
exhortations to preserve and protect important heritage that are embodied in the
planning guidance. They all encourage leaving our heritage in a state where
future generations can carry out the additional work that will reveal even more
about the events of 1066 unless there is some overriding need to destroy it.

From this perspective, all that should be required to satisfy the planning
rules and guidance is a general recognition of the battle’s location. I am not
aware of any informed commentator who does not identify Germany Beck as the site
of the battle, and I cannot help repeating this as my mantra. When all the
investigative evidence is added I would suggest it moves us well beyond ‘the
balance of probability’ and close to ‘the beyond reasonable doubt’ class
of proof.

This philosophical discussion becomes important when it comes to
understanding the way the planning system has so completely failed to protect
our heritage. Those who are engaged in operating the planning process surely
recognise that there are limits to our knowledge. Consequently, judgements have
to be made. The guidance under which they operate when matters are unclear, is
equally clear. First, investigate to see if uncertainly can be removed from the
decision and, failing that, apply the precautionary principle whenever
irreplaceable heritage assets are the issue. All of the guidance on the subject
of preserving heritage is unambiguous on what has to be done.

The problem of ‘proving’ the site should not have been an issue for those
seeking to save a site with such high heritage value. The onus to test the
credible opinions and the hypothesis that was offered, first to the planners and
then to the inquiry, should have been handed to the applicants.

However, the defence put up by those who want to destroy this site was to
deny that there was any evidence for the battle in this location. If there is no
battlesite then none of the protections need to be considered. In this ‘defence’,
they were completely successful.

This is what actually happened.

On the eve of giving my evidence at the inquiry I had a short meeting with
the inspector when he said:

"I think the developers have all the archaeology sewn up, but I will be
interested to hear your story, so do tell us about the battle"

He made this statement even though nearly all of the material presented in
this report was set out in written submissions which, in accordance with the
inquiry rules, all parties had seen many months prior to the hearings. He made
this statement soon after I asked him if he had noted my rebuttal of an
accusation that my finds were a complete jumble of junk. Again, he reassured me
that he understood all the games the applicants were playing with me.

The inspector’s prejudicial statement led me to spend the whole night
rewriting my statement to show that the archaeologist for the developers had
certainly not ‘sewn’ it up. If the inspector had meant that they had
stitched me up, I could have agreed with him.

The inspector had somehow failed to place the burden of proof on those who
are in the best position to provide the evidence. The inspector states in his
report that traditional archaeological methods will suffice, even when they are
know to be deficient at Hastings and Stamford Bridge and alternative
investigations have been shown to produce meaningful results. But I was too
late: The case had already been judged.

Archaeology is like a feast with diverse dishes; so digging is relevant if
gathering potatoes but is irrelevant when you are collecting the ingredients for
a fruit salad. The applicants were given timely advice about their failures to
properly investigate the battlesite and our help was offered many times in the
active years of the project. I do not think that they acknowledged a single
offer of help.

At no stage was I asked a single question, nor did any of the opposing
parties enter into a debate about methodology. The statements I made went
unchallenged, and therefore un-debated. I suspect that the developer’s legal
team did not want to draw the inspector’s attention to what we had uncovered
and hoped that the personal attacks would achieve what reasoned argument could
not. The inspector was also silent until he came to give his judgement, which
makes no allusion to any defects in the archaeology that was undertaken in 1996
before there was a proper debate about the battlefield.

It still shocks me that the planners and the inspector could so completely
ignore a body of inconvenient evidence.

Other matters that were ignored by the inquiry and the planning process

‘In Situ’ preservation

ODPM asks in the call-in letter if ‘in situ’ is appropriate to
this site. The inspector failed to address this even though it was part of his
mandate. I suspect that the universal defence, ‘there was no archaeology’
and therefore no need to debate the subject, would be deployed if challenged.

My assumptions are different. I assume that this matter was raised by the
Minister’s officials for a purpose as they recognised that this matter was
especially relevant if, as much of the planning paperwork suggested, this was an
ancient battle site. It should have been answered by the inspector. In situ,
in this context does not mean leaving sites alone. What it implies is that the
site will be left but can be buried beneath construction work.

A conference was convened in 2005 by English Heritage to reassess the general
presumption that preserving sites beneath buildings was the favoured option.
While this is a sensible compromise in many cases, it is now clear that this
does not preserve all types of archaeology which is leading to a review of this
policy. Experience now suggests that building on top of buried archaeology often
destroys it as well as rendering it inaccessible to researchers for several
generations while the building stands there.

‘In-situ’ is utterly inappropriate for a battlefield. Indeed it is
hard to see that burying the landscape below up to five meters of hardcore,
capped with tarmac can seriously be interpreted as ‘in situ
preservation’ as the term is generally understood. The landscape surface is
the battlefield. Burying it beneath a road is not preservation in any sensible
interpretation of the word.

This is what the planning guidance says.

"Once the planning authority has sufficient information, there is a
range of options for the determination of planning applications affecting
archaeological remains and their settings. As stated in paragraph 8, where
nationally important archaeological remains, whether scheduled or not, and their
settings, are affected by proposed development there should be a presumption in
favour of their physical preservation in situ i.e., a presumption
against proposals which would involve significant alteration or cause damage, or
which would have a significant impact on the setting of visible remains."

The guidelines are again clear. The consensus among experts is that this was
the probable location ‘of nationally important, archaeological remains’.
Both the question of preservation, set for the inquiry to address, and the
remains themselves, were simply ignored. The visual impact of the access road
will destroy the battlefield. I can have no respect for the politicians,
planners, professionals and builders who are a party to such a disregard to
their instructions, the available evidence and common sense.

Exploitation of the heritage value of the site

"HE9.3

To
be confident that no appropriate and viable use of the heritage asset can be
found under policy HE9.2(ii) local planning authorities should require the
applicant to provide evidence that other potential owners or users of the site
have been sought through appropriate marketing and that reasonable endeavours
have been made to seek grant funding for the heritage asset’s conservation and
to find charitable or public authorities willing to take on the heritage
asset."

Guidance such as this makes it clear that some thought should be given to the
full value of heritage assets. I want to place on record that I approached
various bodies responsible for tourism and business development in the city of
York on a number of occasions and they expressed support for the efforts to save
and promote Fulford as another site of significant local heritage. However, they
were prevented from giving any public support. I raised this ‘gagging order’
with various politicians and the planners but it achieved nothing.

The economic benefits

In this context it is of interest to study the guidance issued to planners
for the historic environment. The importance of the economic value of heritage
is clearly set out:

"Conservation and economic prosperity

"1.4 Though choices sometimes have to be made, conservation and
sustainable economic growth are complementary objectives and should not
generally be seen as in opposition to one another….

"1.5 Conservation can itself play a key part in promoting economic
prosperity by ensuring that an area offers attractive living and working
conditions which will encourage inward investment - environmental quality is
increasingly a key factor in many commercial decisions. The historic
environment is of particular importance for tourism and leisure, and
Government policy encourages the growth and development of tourism in response
to the market so long as this is compatible with proper long-term conservation.
Further advice on tourist aspects of conservation is given in PPG 21 and
the English Tourist Board's publication Maintaining the Balance."

This extract from PPG15 points to the economic potential of heritage and
there are many references, including the Minister’s letter to the inquiry,
requiring the economic potential and various alternatives to be considered.

The officers failed to make such an assessment. They failed to do this even
though they were invited to do so in writing and various conversations. For a
city where heritage plays such an important part in its prosperity, it is
difficult to explain this calculated omission when the planning guidance makes
it clear that an economic evaluation is a sensible exercise.

If some effective presentation of Fulford was devised, the examples of
Hastings and Culloden suggest that over 100,000 visitors will pay to enter a
visitor centre per year.

The proximity of a ‘park & ride’, plus a nearby designer centre which
attracts several million visitors each year, and all this in a city where
visitors already make a considerable contribution to the local income, it would
seem obvious that the community should exploit the site as a unique,
international attraction. After all, nowhere else will ever be able to create
another battle of Fulford site from the iconic year of 1066.

Scottish Heritage has recently invested several million pounds including
removing modern features and trees from the battlefield of Culloden. The work
included re-directing a road and a new visitor centre. Battle sites abroad are
generally better appreciated, including in the Republic of Ireland and Northern
Ireland. In the U.S.A. where the National Parks Authority cares for many
battlefields, visitor numbers are measured in millions.

This battle has significance beyond the locality or even this island. Troops
from Norway, Iceland and Flanders were victorious in this last great battle of
the shieldwalls in England. This makes the site an international visitor
attraction that is worth adding to York’s portfolio.

Neither the planning officers nor the inspector addressed this issue even
though it is mandated by the planning guidance and was in the specific questions
posed for the inquiry. I would suggest that a pattern is emerging: any topic
that might draw attention to the battle site was simply ignored.

Fig 8.1 The battle site is very accessible as there are many paths, tracks
and roads. There is good parking both at the park & ride but as several
other places along the smaller roads and tracks. The site is also easy to
understand as there are few modern buildings.

The duty to assemble evidence and why it did not happen

The failure of the planning system to demand a proper investigation must be
considered as one reason for any shortfall in the body of evidence. Put another
way, it is not sensible to say that there is no evidence when so little was done
to collect it. The main archaeological work on the site took place in 1996 just
as the site was inherited by the city. I have been repeatedly told that this
constrained the city from demanding extra work.

The Fulford battlefield society repeatedly offered to do the work but instead
the Society was constrained so lack of resources or time can not be used as
excuses. Preventing the gathering of evidence should have alerted those who sat
in judgement that the applicants had a lot to hide.

Denying us access was rewarded by the planning rules. If you do not allow
people to look, you can deny that anything is there. The denial defence, as
noted elsewhere, was successfully deployed.

The ODPM letter asked about PPG 16. This raised the ‘adequacy of any
assessment’.

‘The city archaeologist agrees that ‘there is no accepted methodology for
evaluating 11th century battlefield sites.’ But goes on to say ‘it
is reasonable to suppose that standard archaeological approaches would have
produced some evidence’. This assumption is not only unfounded but is
demonstrably wrong. Recognised sites such as Hastings and Stamford Bridge have
failed to yield conventional, archaeological material. In Sweden, work on
battlefield sites is not permitted since they do not recognise any method for
investigating them.

There is not the slightest reason to believe that conventional archaeology
which relies on investigating centuries of items in layered contexts will work
for a battle that lasts a few hours. If the battle had taken place over land
that had previous and subsequent layers of occupation, there would be some
context but at Fulford this does note exist – The land was, and remains, largely
open countryside. To require battlesites to provide evidence in a context that
is impossible defies existing experience, common sense, and logic.

Consequently, the analysis about the battlefield that follows from the city
archaeologist is undermined. The fact that most of the original archaeological
work was done a decade before the planning application was finally considered,
and that this intervening decade coincided with the recognition of battlefield
archaeology, were not considered.

Finding a battlefield involves more than digging holes and hoping to find
some indicative artefacts. If you added the total area of all the trenches
investigated by the developer, it would add up to an insignificant percentage of
the battlefield investigation area (<.01%). Fulford indicates that debris was
gathered after the battle and it is the hearth debris that will help locate
battlefields.

The nature of archaeological investigation on battlefields is new and the
approach we adopted at Fulford was pioneering. The results we have found were
spectacular but they were simply ignored on the discredited grounds that the
traditional methods should have worked. Nobody else addressed the failure of the
applicants to assemble or to assess the Fulford evidence as required by the
mandate for the inquiry. The inspector followed the applicants and ignored yet
another part of the mandate for the inquiry.

Whatever else may come of this project, I hope it will advise all planners
not to expect a wide scatter of finds on a medieval battlefield or neat layers
of evidence. Quite how one can open closed-minds to the notion that
archaeological investigations should be relevant to type of material sought, I
do not know, since I failed to achieve it by deploying these facts and
arguments.

Need for housing

The following words were written in 2005, long before the housing recession
and the banking crisis. It is taken from our ‘proof of evidence’ document,
provided for the inquiry.

"With planning, as in so much else, it is dangerous to assume that
because everybody agrees with a policy, it is necessarily right. Chapter one of
any economic textbook might explain that supply, demand and price are related.
Subsequent chapters then go on to explain that things are much more complicated.

"The house-builders stick to chapter one and promote a model where
availability is the only key to affordability. Their argument goes that if the
supply of housing is increased, the price will drop. This was the view set out
by the CBIs chief economist Kate Barker in the government-sponsored report.

"However, there is much evidence from academic studies to show that
house prices respond to supply in a very much more complex way. In fairness to
the Barker report, it spends more time analysing the way that windfall profits
from development should be returned to the community. She presents no analysis
to support her belief that when lots of houses go up the prices will
automatically come down."

But increasing supply of housing is the only suggestion to help lower prices
that has been promoted by politicians, especially the then Chancellor, Gordon
Brown. Naturally the building businesses agree with him and so did the
inspector. The evidence I presented to the inquiry showed that the relationship
was more complex.

"Detailed study of regional house prices published by the Joseph
Rowntree Foundation in 2004 show that supply has only a small effect on pricing.
The same model does however explain why house builders favour certain types of
house. House price differences, for example, exceed those in incomes because the
'income elasticity' for housing is about two. This means that a 10% change in
income differential generates a 20% increase in the price people will pay for
property. With the income differentials increasing, it is possible to sell
bigger houses at even higher prices. House prices are driven by income just as
much as supply."

Other witnesses at the inquiry pointed to the number of new-build properties
that were not being marketed so that the demand pressure was maintained,
supporting the rising prices. I cannot find a mention of this in the inspector’s
notes or his report, other than there being a lot of flats ‘in the pipeline’.
A naïve view of supply was maintained and the inspector was swept along with
the ambitious economic growth model as the asset bubble inflated.

However, it has finally been recognised that it was in fact the supply of
money to the housing sector that was the key driver of house prices, not a
shortage of property. The over-supply of funds drove up the house prices
swamping any effect of increased, but carefully managed, supply of housing.

I was persuaded to remove a passage from the evidence submitted which showed
the close relationship between mortgage availability and house prices. The work
I was quoting had been commissioned in 2001 by the government, who wanted to
know if there would be a house-price crash after the boom. The conclusion from
their study was that there would be a soft landing, provided an adequate supply
of money was maintained. So the Treasury exercised no control of the supply of
funds and that allowed people to pay the inflating prices for housing and the
builders were in a great hurry to take their unfair share of the cash, under the
pretext of helping people by increasing housing supply.

Type of Housing

It is not clear if the ODPM intended to include the appropriateness of the
type of housing within the scope of the inquiry. If he did, then the inspector
ignored it. However, I did raise the issue as it was highly relevant to the
space and location of the housing. But this issue did not merit any debate or
mention.

"Not far from this proposed development is an area of the University now
know as Halifax College. This area has grown organically to meet the needs of
the university over the last 20 years. It now provides accommodation for over
1000 people, most in small houses. It covers approximately 4Ha, so it is a
quarter of the size of the area that Germany Beck will devote to house building.
Given that the national average of non-retired household occupation is 2.7, the
same sort of mixed housing at the University could be accommodated in under half
the area proposed. (750 houses x 2.7=2025 residents)

"While housing at Germany Beck was being considered, the adjacent
expansion of the University could not be considered in the process. As the
building work on the expanded University is already well advanced, the model set
by Halifax College would seem to be a much better one to follow. There is an
obvious symbiosis between the two developments and it is an indictment of the
planning process that it cannot contrive to ensure that appropriate
accommodation is built rather than the aspirational, commuter houses that
feature in the plans submitted."

What could be more sensible than to provide appropriate family and student
accommodation across the road from the University? Much mention in the inspector’s
report talks of the need for housing based on ‘The Science City’ that is
going to be based at the University. So why not build housing that is relevant
to the recognised need?

Are there alternative models for making land available for housing?

Yes, there are some sensible alternatives but it was not possible to get the
inspector to consider them. I presented a spreadsheet model as a part of my
evidence to the inquiry (25.1) to indicate the true value that is transferred by
the community to the landowner and developer. So the value of gifting planning
permission to a single large house builder was assessed without any alternative
housing development models being investigated and the call-in letter did ask for
the suitability of this assumption to be assessed.

Here is a completely different development model that was given in evidence
to the inquiry.

In this model, land would be offered for development by the owner.

They would be granted preliminary permission once the community had been
consulted.

The area would then be investigated by the planning authorities, local
community and the owner.

Outline permission would be agreed by the local community once the
investigations were complete.

This permission to develop would then be sold by auction or by tender.

The sale would not only refund the cost of investigative work but yield
considerable revenue to the community if the illustrative figures below, give a
guide to the value that is transferred from the community to the developer. The
model suggests that each dwelling yields £117,904 after building costs and the
inflated cost of the land are deducted. (The Barker report suggests that
planning permission increases the value of a piece of green-field land up to 300
times its agricultural value.)

This colossal income per dwelling permission granted would pay for a lot of
archaeology and, more seriously, return the premium to the community. If this
became a significant source of local income then the NIMBYs would have to
persuade their community that their privacy was more important than the services
or facilities that the planning-premium income could provide.

The benefit to the community would therefore be this income from the sale of
planning permissions. For large, medium and small developers, much of the
uncertainty would be removed. The planners would only have to deal with the
developer to agree details of building and their layout. The strategic part of
the planning process would be separated from the tactical decisions of
disposition.

This sequence would put the community back in charge of the development
affecting its area. With a powerful, financial incentive to release land. The
community, rather than developers, would therefore select the areas and set the
parameters for each development.

I note in my submission that it is unlikely the Minister had such a radical
idea in mind, but it does serve to illustrate how unaccountable a developer is
to the community upon which they impose their plan. The figures also show how
unbalanced the rewards are that flow from the granting of a planning application
which again favour the developer.

Putting the developer in charge of the investigations is a recipe for
disaster as Fulford has amply demonstrated. It is clearly bad practice for the
party who has a vested interest in the outcome of investigations to be
responsible for commissioning them. The problem is exacerbated where there is
neither a civil nor criminal penalty associated with any misrepresentation to
local planners or the public inquiry.

So, if all of this investigative work was undertaken by the community, under
the direction of the local planning department, only land that was approved
would be released for a proscribed use.

Germany Beck

A model to identify the revenues from the proposed development

Development calculator

Prices

See links below for sources of price data

Agricultural land

£8,000

per Ha

Development land

£1,200,000

per Ha in Yorks/Humberside

Average housing unit price

220,000

Reflects planned range of house sizes and 25% 'affordable'

Average building cost

50,000

From ABI rebuild calculator assuming garage & landscaping

Site data

Housing units planned

750

Density per Ha

41

(Units from planning application)

Site size

32.6

Ha

Full extent of site

Housing

16.9

Ha

Housing area

Value of land

As arable

£260,480

Existing valuation

As development - housing area

£20,280,000

78

fold increase developed/arable

As development - whole area

£39,072,000

150

fold increase

Balance sheet

Developer income

£165,000,000

Assuming all houses sold

Developer costs

£99,543,600

Building+Land +Overhead Costs(30%)

Gross margin

£65,456,400

1.7

margin of costs/income

60

% profit (the income minus expenses)

Cost of the land per home

£52,096

Cost of land

£50,000

Cost of property

£220,000

Selling price

£117,904

'Inflation' of land price

Agricultural land cost

£195

per dwelling

Persimmon published accounts figures

2005 financial report

12,360

houses sold

171,431

Av price

23.3% Margin cost over expenses

Jun-05

Fig 8.2 These were the modelled figures presented to the inquiry to indicate
the large margins with which the developers were working. These figures suggest
a 150 times, rather then the 300 times price ‘growth’ suggested by the
Barker Report, when planning permission is granted. The value of land can jump
100-fold after planning permission has been granted, according to findings
published in December 2005 by the Institute for Public Policy Research. So this
spreadsheet model falls between the two official estimates.

The bit of the Green Belt that was ignored

Sadly, national decisions had been made to remove the absolute prohibition on
development of land that had been designated part of the green belt. There was
much discussion about the legality and impact of this since the applicant’s
site impacts on York’s green belt. The inspector had no doubt that the houses
could be built on the land since all the correct procedures had been followed.

However, one small section of Green Belt had been specifically excluded from
the all these plans and procedures because its importance to the local ecology
was recognised. I drew the inspector’s attention to this in written and oral
evidence.

There is a small section of the beck near the A19 that links the Ings to the
hinterland that is of very special importance for recreation and ecology. But it
is also part of the old ford on the battle site, and so it was argued that its
existing and protected status should be maintained. The inspector accepted that
this has not been excluded from the Green Belt but said,

"The access arrangements necessitate works to construct the spine road
and its junction on a triangle of land beside the A19 and Germany Beck within
the Green Belt. But that has always been the case."

The inspector was wrong, since the original access was not from the A19. It
‘has not always been the case’. Those who decided not remove this bit from
the Green Belt recognised this was a small area that needed protection. They
intentionally excluded this vital link along the ecological corridor which
connects the river Ouse system and the Ings with the extensive wetlands and
moors. They clearly left this vital fragment of the Green Belt by design since
all the surrounding land was marked for development.

The inspector’s assumption is therefore exactly the opposite of what was
intended by those rearranging the Green Belt designations. They recognised that
any access to the housing would go to the north and specifically blocked access
to the A19 because they already recognised such a plan was an absurd proposal
from so many perspectives.

It took my breath away when I first read the arrogant assumption which
implied that the half-wits making earlier decisions about the Green Belt
designation must have realised the land would be required if the rest of the
area was to be covered in houses. This is quite wrong. The sensible assumption
is that they protected this tract of land for many good reasons. They knew that
there were many possible access points to the north, which formed the original
plan for this area.

No other evidence was offered to deprive this part of the beck that enjoys
the status as Green Belt land except for the tautologous argument that it has to
be used for an access road because an access road is needed for the development.
This fragment of the Green Belt was just another inconvenient obstacle in the
way of approving the application.

So Germany Beck loses its Green Belt status because, in the inspector’s
view, those working on the Green Belt plan must have realised that the access
road would have to be built there. From this erroneous assumption, great damage
will be done to the environment when the environmental corridor along Germany
Beck to the extensive hinterland of common is closed.

Germany Beck Road junction – Phase 2?

The real fear for the battlefield is not the housing but the disastrous route
along Germany Beck. If this access road is ever built, further developments will
soon be ‘needed’ to cope with the traffic at the junction with the A19. This
junction will soon prove inadequate. The council officer explained that since
the A19 road was already beyond its carrying capacity, the rules did not allow
them to demand improvements to the main road. He also said that the Highway
Authority responsible for the nearby ring road could demand that the city
council take steps to ensure that the traffic did not tail back to obstruct the
ring road. This already happens and it is a gross failure of the planning system
to pretend that adding 600+ homes will not add to the congestion on the A19.

The pattern around the northern ring road, where two decades of disruptive
enhancements followed the construction of housing and shopping estates that were
built with utterly inadequate access, is likely to be repeated.

Why is the planning system unable to confront the applicant with observations
like this? Why can’t planners actually plan? Why does the whole planning
system adhere to predictive models that have been shown to fail? The answer is
simple. Any development generates further development and the static models do
not address the dynamic nature of development. We need planners and politicians
to prepare for the future and specify the necessary infrastructure.

In dark moments, I think I can hear future planners saying that, since the
battlefield has already been damaged by the access road, there is little point
in resisting the need for a complex junction at the intersection with Germany
Beck. This is why it is vital that no road is ever built along Germany Beck. No
mitigation is possible here. The road cannot be built if the battle site is to
survive.

Developers understand this, which is why they worked hard to remove the
battlefield from consideration. They will be thrilled when they can walk away,
leaving others to pay for the consequences of their disruption. It really is
important that some grown-ups take a look at the absurdity of the proposed
junction.

The site is designed with a single access that enters the development at one
edge. The layout is shaped like a tadpole with the access road providing a long
tail. Every journey has to add two transits along the access road. The proposed
disposition of shopping near this road will entice others to drive into the
development, adding to the traffic at the junction. CABE studied a similar
design of estate in Consett, where the shops were far from the ‘centre of
accommodation’ so people used their cars inside the estate.

The bus company has also said that it will not run a bus service into the
proposed estate because of the unsuitable layout. They will however be bribed,
or in planning parlance subsidised, until the building work is complete, after
which any service will presumably be withdrawn.

How is it possible for a plan that is so clearly defective to be approved?
The answer is that it can all be shown to fulfil all ‘the planning criteria’
(at least until the bus service is withdrawn). So the next puzzle I face is, why
do they apply some questionable planning guidelines so meticulously here, but
ignore them when archaeology and the environment are being considered?

This is a serious indictment of the ‘plans’ and ‘targets’ culture
because here they are preventing a common sense solution. Politicians should
shoulder their responsibility for questioning rules that produce absurd
outcomes. Once any future inhabitants of these houses get the vote, they will
demand that they are provided with direct access to the city, shops and the
adjacent university rather than taking a 2 km detour onto a busy road. New roads
to the north would eventually be built. It is absurd that the planners do not
have the courage to recognise this now. A series of sensible access roads to the
north would allow this ‘tadpole tail’ route to be shed.

Figure 8.3 This banner was put up (with permission) to indicate the height of
the planned route along the beck. The Norse army would have stood on the bank,
below this banner and then advanced across the peat bog to attack the English
shieldwall. The latest plans for the height have not yet been published but it
is understood that the level has been raised because, when this area floods, it
almost reaches the height indicated.

PS This banner would have been under water again in April 2012 as the
floods already reach this level - We told the inspector, but he ignored us.

And there is the matter of the regular Flooding

During the project there have been many chances to observe the flooding of
Germany Beck and the Ings. It was alarming to observe that the ‘official’
levels of flooding were accepted by the Planning Inspector even though we stood
on the land and showed him photographs from private collections and the local
newspaper.

I am writing this report as the world of ‘fantasy banking’ is being
exposed. The era when things were so, just because the bankers and politicians
wanted it to be so is hopefully coming to an end.

The flooding facts must be faced by those who are deaf to the message from
King Cnut that we must respect this natural force.

Fact one: the Ings are rising by 1.5mm each year. The area of flood plain
around Fulford is equal to almost one square kilometre. So we are losing 1,500m3
each year in terms of storage capacity of the flood plain. The water has
been seeking new space to overflow and it will continue to do this for the
foreseeable future. Any plan to construct buildings on this land must recognise
and plan for this.

Fact two: there is trouble downstream where the level of silting and its
capacity to store and to convey water is changing even faster:

"The anticipated effects of global warming have already led to the
raising and strengthening of flood defences along the Humber and lower Ouse. At
mean high water springs the Humber at Brough reaches 4.2m AOD, while large areas
of farmland to the north of the river are at 2m-4m AOD. Much of Hull itself lies
at around 3m AOD. Records at Immingham, a standard tidal port, indicate that the
extreme water level there rose by about 7mm a year between 1910 and 1972. If the
trend continues then mean sea level in the Humber will stand at about 4.99m AOD
by the year 2100; and we shall all have rather more to worry about than the
occasional winter flood."

The inspector’s report is aware of global warming and he gifts the
community of York a plan to raise the A19 which has flooded 3 times in recent
years. I am not sure if this lies within his remit, but I am not happy with this
suggestion. I have two objections. The first is that I can at present stand on
the playing field and point to the land sloping down to the ford and the lane
through Water Fulford. That view will be blocked. Second, this same road height
will have to be maintained along the access road with the impact it will have
there.

This is an example of planning creep. The proposed access road requires
changes outside the area. Then the changes outside will call for a modification
to the heights inside the area. The process can soon be iterative. It all makes
perfect sense if you accept the premise that we have to have the access road
emerging onto the A19. But none of the necessary impacts have been assessed for
the extended work. This point was made when the stopping up order was made, but
it was ignored. This road transects the battle lines so needs a proper
archaeological investigation.

I have talked with the Environment Agency, the Local Authority and the
consultants hired by the developer, but they all maintain that they are using an
approved model to predict flooding. The approved model does not take account of
the observable changes. It should not be acceptable for the Inspector simply to
bemoan the failure of the theory to match reality and then to ignore reality and
approve a plan that is based on observably flawed theory.

Since the planning application was approved, I am told there have been
adjustments to the official flood level to make them consistent with the facts.
However, the plan for the access road along Germany Beck has not been
reconsidered. It will presumably just be raised higher with all of the
detrimental impact this will have on the visual and acoustic environment.

This raised an important point that planners are apparently not allowed to
consider. Once approved, even if the basis of the approval is shown to be wrong
or has to be changed, they cannot review the application.

This provides an incentive for builders to understate impacts and then
incorporate them later. If there is any justice in the planning process, this
issue alone should be enough to call for a complete review of the plans for the
access road.

This is how I expressed my frustration in an ironic letter published in the
local paper in February 2008

"Thank you for the excellent photograph and article about the flooding
along Germany Beck and the way the planning system doesn’t really work. I was
standing beside Christine Dinsdale, whose alarm you report, when she showed the
pictures and newspaper reports to the Planning Inspector during his site visit
at the end of the Public Inquiry about Germany Beck.

The Inspector commented that it was ‘difficult’ when the official
flooding line was contradicted by the evidence which various local people
reported to him. The Inspector’s report however accepted the ‘official’
view that was given to him by the developers even though we had produced many
images, covering a number of floods, that showed the flood water reached a metre
higher than the flood line used in the design."

This same letter to the local press pointed out that this disregard of the
facts was not confined to the flooding.

"On the same site visit we encountered the hole of a water vole which
had been exposed by some hedge trimming. The representative of the builders
insisted that this must be ignored since ‘it had not been presented in
evidence during the inquiry’. The Inspector went along with this madness and
his report accepts the unsubstantiated view presented by the developer’s
expert that Germany Beck is not a habitat for water voles.

This view was maintained in spite of the evidence presented by those who knew
the beck much better and, of course, the inescapable evidence of the hole of a
water vole at the feet of the Inspector."

My letter concludes:

"I do not believe that those operating the planning system are either
stupid or dishonest, so the fault must lie in the mad rules under which they
operate which requires some inconvenient truths to be ignored.

Please continue with your enquiry as it is vital that some sense of reality
creeps into this planning debate before the vital historic, environmental and
recreational resource of Germany Beck is destroyed."

The Heritage Protection Bill

Something called the Battlefield Register was compiled as a desk-based
operation in 1995 when few people were aware that a significant battle had taken
place at Fulford. It was intended as an interim measure and there are many
recognised omissions. Rather than amending the register, the intention for the
last decade is to enact the Heritage Protection Bill (HPB) which will recognise
and protect battlefields such as Fulford.

This bill has been in the legislative queue since the time of the inquiry and
the process of consultation has run concurrently with the Fulford project. The
Heritage Protection Bill was not a priority with Gordon Brown’s government and
made it into the parliamentary schedule only to be removed when the financial
crisis began. So a substantive piece of legislation is waiting that will provide
better protection for many aspects of our landscape, including battlefields. The
new legislation to protect Fulford is simply awaiting consideration by
Parliament.

I would argue very strongly that Fulford is in jeopardy because of the
Parliamentary timetable. Given that the bill enjoys all-Party support, its
passage is assured. But the issues are complex and it is quite right that it is
introduced when there is time for proper consideration of its radical proposals.

The inquiry was made aware of this and I was able to tell the inspector that
in a conversation with the relevant civil servant I was told it would be
published in the summer, shortly after the inquiry finished. I made this
statement in good faith, but we are still waiting for the bill to be enacted.
The procedures to give effect to the provisions in the bill regarding
designations are already being prepared.

I have made various representations to MPs to ask that the final Act is
amended so that designations take immediate effect and would void any planning
applications affecting them. Since all parties at the inquiry were well aware of
the plans for the HPB, I regard their attempt to force this matter through
before Parliament had time to consider the bill as showing contempt for our
legislative process.

I can only hope that Parliament does not delay too long in expressing itself
on the subject and enacts this bill very soon to give it immediate effect and
prevent those who try to cheat our legislature from gaining an advantage.

Postscript: The current coalition government has not included the
Heritage Bill in their legislative plans. English Heritage have now revived the
various measures, such as the Battlefield Register, which they had sensibly set
aside pending the expected Act which has been pending for a decade. At the time
of writing, there are plans to assess Fulford for inclusion in the Battlefield
Register.

My conclusions about the planning process

It is not my view that the planning rules need to be radically changed in
order to provide protection for sites such as Fulford. The Heritage Protection
Bill would certainly bring some welcome clarity. But I believe the rules already
exist that should have prevented permission being granted to destroy this
irreplaceable heritage asset. The problem lies with those who administer the
system and with the balance of power in the planning process.

I do have a little sympathy for the officers. I have challenged many of them
and their defence is always that ‘they were just following orders’ or ‘doing
their job’. This is a discredited defence. It was obvious to me that the
instructions they were following broke the planning rules.

I have argued above, as well as at the inquiry, that ‘their job’ is
precisely what they were not doing. The guidance and codes in the planning
systems are clear enough and the rules should have protected the site. Those who
have acquiesced in the plans to destroy the battle site have done it by
interpreting the rules in a way that suits them and ignoring those parts that
obstruct them. That is not the way the complex system that tries to bring about
balanced decisions is supposed to work.

I therefore feel something that is close to contempt for the local and
national politicians who have dealt with this matter. They are elected to deal
with precisely those difficult matters where judgments have to be made on behalf
of society. And yet they always claimed that they were powerless. That may have
been the current reality but in a free country, that is not the way things are
supposed to work. They failed to exercise the democratic mandate they have been
given and for that they are culpable.

That wonderful term ‘beneath contempt’, is one I would apply to the
partisan experts who prostituted their services. They all seem to have forgotten
that their first duty is to the truth and a win is only valid if it is achieved
justly. I pass judgement on the inspector later.

There are many anomalies in the planning system and this is why it requires
sensible and honest people to balance conflicting priorities. Therefore I want
to keep the focus on the people who operate the system and those who exercise
the power, rather than the rules.

Why should we be interested in finding and preserving battlefields?

Dr John Carman, University Research Fellow in Heritage Value at The Institute
of Archaeology and Antiquity, University of Birmingham, has been leading the
academic debate about battlefields as cultural artefacts. He highlights the
problems associated with preserving battlefields. He has written: "The
category of ‘historic battlefield’ is a new category that has emerged from
the shadows of archaeology over the last twenty years or so. As an object of
specifically archaeological concern it is an interesting and problematic
category, although this is not often acknowledged by battlefield
archaeologists."

After criticising the way that military and social historians have dominated
the choice of the battles sites that are rated as important, Dr Carmen
concludes: "Instead we should be examining not the spectacular, the
decisive and the memorable but precisely those ‘strategically piffling,
pointless bloodbaths’ that Keegan refers to; these are the more usual and
representative battles of any historical period."

The old view of ‘celebrity battles’ is now being reassessed. When that
process is complete, the relevance of Fulford to the events of the autumn of
1066 can expect to be better appreciated. My own view is that people like to
visit battle sites since they understand, at a visceral level, that this is the
place where ideas and power are so painfully tested. Standing on the ground
where their ancestors faced their foe, people can imagine the feelings and
loyalty which made them stand their ground.

There has been much debate about how to provide protection to battlefields
and the various consultative processes, leading towards a new legal framework,
has been completed. English Heritage has launched a project to define a
methodology to investigate battlefields which should make life much easier for
the planners of the future. However, not a single word has been said by the
responsible bodies on the subject of the economic benefit that the
identification of such an iconic battle would bring. I would also like to put on
record that the relevant agencies of COYC were approached but they told me that
they were under instruction not to comment. I made some attempts to extract the
source of this gagging order using the FOI but it required too much effort to
chase this down.

The images above are from Culloden and Hastings. The Culloden visitors
centre attracts hundreds of paying visitors each day to the remote piece of
countryside. Hasting attracts a major re-enactment every year generating traffic
jams on the surrounding roads. Battle sites are popular attractions as well as
cultural and educational artifacts. The site at Fulford already has a network of
tracks and paths so it open to visitors. All that is needed is some investment
in the interpretation.

How much of the battle site has survived?

The contradictory messages given by the developers and the planning
authorities that the battle was not along the line of Germany Beck or perhaps,
that the battle site had been destroyed by changes over the years, all went
un-remarked during the planning process.

When asked during the initial planning hearing why the developers had
proposed a battlefield trail while arguing that the battle did not take place
there, the council officers mumbled. So it became a nature walk in later
documents. So if this road is ever build, there will be a battlefield trail
along Germany Beck as part of the plan. But it will start just beyond the place
of the two shieldwalls clashed as that will be buried below the access road.

In fact the site has survived remarkably well. It is possible to use public
footpaths to walk all the way from Riccall, to the fording place at the heart of
the battle. You can walk along both shieldwalls without moving off public paths.
Many of the paths are suitable for push and wheel chairs and they link the site
to a nearby Park and Ride. The battle site is already well served with buses and
has excellent foot and cycle access to the city centre. It is ready made for
visitors and I have conducted over 100 parties round the site and organised four
re-enactments.

It is possible to give an excellent tour and in many places to stand on the
surface where the battle lines were drawn up in 1066. So I really feel the term
‘cultural crime’ can be applied to those who conspire to remove this option
by making this precise area into an access road.

The landscape changes are;

The place where the English shield wall formed up is as it was in 1066.
Only the A19 and the stone bridge, which cuts through the two lines, his
changed. A terrace of five houses has been built beside the road.

The space where the Norse shield wall formed up has not been built over.
But the land has been filled to make it a flat playing field but the land that
slopes down to the old ford can be observed all around.

The redirection of Germany Beck between Fordlands Road bridge and the A19
Stone Bridge removes the lazy loop beneath the playing fields and it has been
canalised to the north.

A cemetery occupies the Norse right flank.

There is one old folks’ home built along the beck.

The ditch that separated the two armies can be clearly seen to the east of
the ford although the water channel is now along one edge rather than
meandering across the peat.

The right flank of the English, beside the river Ouse, is still open ground
as are the Ings.

The trackway through Water Fulford that leads down to the ford is still
there.

These changes are small. It is easy to point to the 1066 landscape and the
few modern intrusions could easily be excluded when, for example, the BBC even
made a short film about the battle. The context has survived well so there is
much to preserve.

Fig 8.4 These are some of the few buildings on the battle site. This is the
junction of the A19 and Fordlands road. This small cluster of houses stands on
the English side of the ford near the place where Earl Morcar might have stood
overlooking the ford. If the access road is eventually built, this junction will
go. A new road will run at first floor level just beyond these houses and then
follow the line of the beck which was the space between the opposing
shieldwalls.

It is never too late

All of this planning process was happening at a time when the national
politicians, the financial regulators, bankers and investors were ignoring the
warnings about the economic problems that were looming. Everybody woke up when
it all fell apart and the politicians, banks and media have successfully
conspired to persuade us that it was all so unpredictable and that nobody was
really to blame.

So those at whom I have directed such harsh criticism might also deploy the
defence that they were following the example set on the national scene. Those
who were making lots of money, not only the real power in the land, but also
possessed such perfect insight about archaeology, the environment, future
flooding, traffic flows, and economic growth that it allowed the actual evidence
to be ignored. The powerful knew best, or so they would have us believe. They
didn’t and they were wrong. So we should revisit the decisions they made and
apply the rules.

It is not too late to save the Fulford site but it will require the numerous
injustices of the process so far to be overturned and a fresh process undertaken
that respects the rules and is run by responsible people.

There is a clear procedure set out in the planning guidance to take account
of new finds and withdraw development rights granted. This should have been
discussed as an option with the developer which would require them to make
provision for an alternative access should the access route be recognised as an
important national monument. Again, we see the rules not being applied. It is
not acceptable to ignore the guidance simply because a bad plan has been put
forward and foolish judgments and decisions made.

"Developers and local authorities should take into account
archaeological considerations and deal with them from the beginning of the
development control process. Where local planning authorities are aware of a
real and specific threat to a known archaeological site as a result of the
potential exercise of permitted development rights (as set out in
Schedule 2 to the Town and Country Planning General Development Order 1988) they
may wish to consider the use of their powers under Article 4 of that Order to
withdraw those rights and to require specific planning permission to be obtained
before development can proceed. Most such directions require the Secretary of
State's approval, either before they come into effect or within six months of
being made, unless they relate solely to a listed building. Further advice on
the use of Article 4 Directions is given in Appendix D to DOE Circular 22/88.
(ppg16: 18)"

With new legislation due to protect England’s battlefields imminent, it
would be wrong to allow the site to be destroyed now. This would be a breach of
the sprit of the law and an abuse of the legislative process. The economic value
of the battlefield provides just one more rationale for rejecting the proposed
access route.

My (slightly toungue-in-cheek) advice for those hoping to save sites of environmental or heritage value

The lesson that I take from my contact with the planners and the planning
process is that planning is political. There are unquestionably many sensible
rules, regulations and guidance in place to ensure that construction is
undertaken that is safe and suitable for both their users and the wider public.
But…

In keeping with the statements printed on the packets of tobacco products
there should be a an advisory message on each rule books saying ‘THE GOVERNMENT
HAS DETERMINED ALL OF THESE RULES TO PROTECT PEOPLE, THE ENVIRONMENT AND OUR
HERITAGE BUT THEY CAN AND WILL BE IGNORED WHENEVER IT SUITS US’.

These rules operate at a time, and in an environment, where there is an
unequal balance of power. The public and other protestors really have no power
and their contact with the system is often humiliating. The proposers of a plan
know how to play this system. The larger the organisation behind a development,
the greater the power they have in the process.

I was horrified to discover how fearful the planners and the elected
officials were of the developers who might sue them if the application was
refused. The system can only work if those set to apply the rules have the
political backing and the voters in their turn must make sure that their elected
representatives do their job. Right now, we do not have public planning. Instead
we have profit-led development.